Lead Opinion
Thе village of North Branch was incorporated under the provisions of chapter 9, R. L. 1905. It has less than one thousand inhabitants.
Section 727, R. L. 1905, now section 1268, G. S. 1913, grants power to village councils to adopt such ordinances аs they deem expedient for certain enumerated purposes. Among such purposes is preventing or
In October, 1920, the village council of North Branch adopted an ordinance entitled “an ordinance to regulate and license peddlers, hawkers, auctioneers, transient merchants, amusements and shows.” It required one following such an occupation or engaged in such a business within the village to take out a license and pay a specified license fee. Section 9 of the ordinance reads:
“The exhibition or attempt to exhibit in said village of any moving picture show, show, circus, menagerie, vaudeville or theatrical entertainment for the amusement of the public on Sunday is prohibited and forbidden.”
Plaintiff applied for and was granted a license to operate a motion picture theater and paid the required license fee. The village officers threatened to arrest and prosecute him under the ordinance if he exhibited motion pictures on Sunday, and he has accordingly desisted, thereby sustaining a financial loss. .He is the owner of a modern and well equipped theater, wherе he exhibits motion pictures in an orderly manner to respectable audiences. The pictures are of moral character, and tickets are sold only in the vestibule of the theater without any cаlling out or announcement of the exhibition or óf their sale.
Setting out these facts in his complaint, plaintiff brought this action to restrain the village officers from enforcing section 9 of the ordinance, on the ground that it is illegal and void. The defendants demurred on the ground that the complaint fathed to state a cause of action, the demurrer was overruled, the court certifying that the question presented was doubtful, аnd defendants appealed from the order.
No question is or could be raised about the meaning cf the word “shows” as vised in the statute. Clearly enough it is sufficiently broad to include exhibitions of moving pictures. 38 Cyc. 258. It must bе conceded that the motion picture business is a lawful business. Nevertheless it is a business which is subject to regulation by the state by vir
This court has twice declared that places of public amusement, such as theaters and motion picture houses, are proper subjects for police regulation and control. State v. Schaffer,
Possibly the power to license and regulate shows includes the power to prohibit them. State v. Redington,
Under a grant of police power to license and regulаte a business, the municipal authorities have power to determine where and within what limits the business may be conducted. In re Wilson,
The legislature, in the exercise of police power, may prohibit all manner of labor and business on Sundays, except works of necessity оr charity, and may delegate authority to municipal corporations to enact ordinances with like prohibitions: State v. Ludwig,
The contention that section 9 conflicts with the general law and public policy of the state is supported by a skilful and plausible аrgument, in substance this: Section 8753, G. S. 1913, is a legislative declaration of public policy relative to Sunday observance, which prohibits the doing of certain things on Sunday, but not the indoor exhibition in an orderly manner of mоtion pictures. R. failing to prohibit such exhibitions the legislature has impliedly sanctioned them, while section 9 of the ordinance expressly prohibits them.
We have examined all the cases cited in support of this contention, as well as others dealing with the vexed question of when a local ordinance must be held inconsistent with the general law. . The conclusion we have reached is that the contention should not be sustained.
It is elementary that an ordinance must not be repugnant to, but in harmony with, the laws enacted by the legislature for the government of the state. It cannot authorize what a statute forbids or forbid what a statute expressly permits, but it may supplement a statute or cover an authorized field of local legislation unoccupied by general legislation. Every business and occupation is subject to the'reasonable exercise of the police power of the municipality where it is carried on, and, in the exercise of the power, a city or village may regulate that which the state has fathed tо regulate. There can 'be no conflict between a statute and an ordinance, where there is no statute covering the subject matter of the ordinance. Such is the case here. The statute is sthent upon the subject of the exhibition of motion pictures on Sundays. It does not prohibit their exhibition. Neither does it expressly permit it, as it does the playing of baseball on Sunday between certain hours. R. refraining frоm legislating on the subject, and by authorizing villages not only to regulate the business but- to refuse to grant licenses and so prevent such exhibitions, the legislature has treated the whole matter as one properly within the domain of the police power of villages. The public policy of the state should be determined by the legislature and not by the courts. We see no reason why reasonable local regulatiоns, adapted to local conditions and in harmony with the wishes
Previous decisions of this court, cases in' other states and the text-writers have expressed views which support the conclusion we have reached. State v. Ludwig, supra; Evans v. City of Redwood Falls,
Notes
Dissenting Opinion
(dissenting).
In my opinion the ordinance in question, so far as it relates to picture shows, is not regulation but Sunday legislation and is repugnant to the statutes of the state as construed in State v. Chamberlain,